Book review: The Right to Be Protected From Committing Suicide

The thesis of this timely volume by leading medical lawyer Professor Jonathan Herring is that there is a human right to be protected by the state from suicide. It is, despite some apparent internal tensions, an important, scholarly, and well-written book.

The content

The book comprises 10 chapters. The first, a brief introduction, notes that discussion about end-of-life questions is dominated by the ‘right to die’ at the expense of suicide prevention. Although Herring supports a right to ‘assisted dying’ in those ‘very few’ cases where the choice is truly autonomous, ¹ he advances two reasons why there is a more profound right to be protected from suicide ² and why the primary legal response to most potential suicides should be prevention. ³ The first is that because many suicides are related to mental and other health issues, prevention is an aspect of the general right to health and life. The second is that suicide is commonly a result of socio-economic inequalities. Herring explains, ‘[a]s society plays a role in creating an environment in which suicide can flourish, society has a special responsibility to protect citizens from committing suicide’. ⁴

Chapter 2 explores the definition of suicide. It notes that there is no universally agreed definition, which makes gathering and comparing statistics difficult and generates confusion in ethical and legal debates. ⁵ There is, however, agreement about the core concept – intentional self-killing – and disagreement tends to concern borderline cases. ⁶ The chapter discusses whether non-intentional self-killing, and cases involving another person, should be classed as suicide. ⁷

The next two chapters discuss the causes of suicide: chapter 3 looks at ‘individual’ causes and chapter 4 ‘social’ causes. Chapter 3 begins by exploring difficulties involved in gathering accurate UK statistics about suicide, depending on whether the definition used is wide or narrow; whether the standard of proof for a verdict of suicide should be, as it was, the criminal standard or, as it now is, the civil standard; and the evidential challenges involved in determining whether the deceased intended to end their life. ⁸ It concludes that coronial statistics are probably the most reliable indicator but probably significantly underestimate the true figure. ⁹ The Office for National Statistics reported that in 2019 there were almost 6,000 suicides in England and Wales, around three-quarters being men, and the most popular method being hanging. ¹⁰ Despite the media’s focus on suicide by the elderly, middle-aged men are much more likely to die by suicide. ¹¹ There is evidence that the attempted suicide rate is 10 to 15 times higher than the suicide rate and that around 20% of people have had suicidal thoughts at some point. ¹² Internationally, the World Health Organization statistics disclose that suicide is a global public health problem, accounting for 800,000 deaths per year. ¹³

Turning to the causes of suicide, the chapter outlines different theories: the biological (which focus on genetic predisposition and external stresses); the sociological (which sees suicide as a result of oppressive or isolating social forces); and the psychodynamic (for which psychological factors, such as feeling disconnected from others and a burden to them, are central). ¹⁴ The chapter points out that although it is possible to identify vulnerabilities to suicide, it is much more difficult to predict which vulnerable people will go on to take their life. ¹⁵ It considers several factors thought to prompt suicide, including mental illness, alcohol, and domestic abuse. It concludes that it is now clear that suicidal behaviour involves a complex interaction of psychological, biological, interpersonal, cultural and, also, social factors, which are the subject of chapter 4.

Chapter 4 contends that society is at least partly responsible for suicide and is therefore under a duty to stop it, particularly where suicide reflects social inequalities and power structures. It contends also that if the causes of suicide are at least partly social, then suicide prevention is as much about changing society as it is about changing the suicidal individual. ¹⁶ It notes how discussions of suicide are still dominated by individual explanations, such as mental health, but that suicide should be seen as a social failing. Suicide is a matter of collective responsibility, especially when it is appreciated that suicide tracks social disadvantage. Poorer people, for example, feature prominently in suicide statistics. ¹⁷

The chapter proceeds to argue for the replacement of the characterisation of people as ‘individual’ selves with a recognition of them as fundamentally ‘relational’ beings. We are not isolated, autonomous individuals but vulnerable and inter-dependent. ¹⁸ Talking of autonomously writing the stories of our lives is a fiction: we are more like members of a choir than solitary writers. Our decisions and life stories are deeply connected to those of others. And given that we are vulnerable and relational, caring is a core part of being a person and the highest moral value. Our value lies not in our isolated egos but in our caring relationships. Being loved is what matters most in life, and that is not a goal we can strive to achieve: it is a gift from another. ¹⁹

On this view of the self, suicide is a symptom of a sick society, not a sick person. There is, moreover, a link between suicide and the strength of a person’s social network: social exclusion and discrimination can be important factors in explaining suicide. ²⁰ There is also a link between suicide and poverty, particularly being in receipt of welfare. ²¹ And the suicide rate is significantly higher among men, perhaps partly because men find it harder to express their feelings and seek help and partly because of the ‘crisis in masculinity’: changing patterns of employment mean there are fewer manual jobs through which working class men historically expressed their masculinity. ²² For some men who have lost a sense of control, suicide may offer a means of reasserting control. ²³ Male accounts of suicide certainly seem to be associated with feelings of failure or inadequacy. ²⁴ Discussion of the role of gender is, however, complex, not least as it appears women make more suicide attempts. ²⁵ Although it is common to link suicide and old age, this is too often expressed in individualistic terms such as the ‘indignities of ageing’ that make suicide ‘understandable’. Such indignities and isolation should, however, been seen as often the product of what is valued in society: suicides among the isolated old are a product of an ageist society. ²⁶ Suicidal ideation among young people, especially those in poverty and with special educational and social needs, also raises concerns about the pressures society places upon them and about the inadequacy of mental health services. In one survey the chapter references, over 10% of 17-year-old girls said they had self-harmed with intent to take their own lives. ²⁷ A culture that normalises and enables suicide has a direct link to suicide rates. ²⁸ The chapter concludes that suicide is a matter of social justice. A society in which there are significant numbers of suicides is a deeply flawed society. ²⁹ Society has a duty to prevent suicide and should not evade that responsibility by characterising suicide as a matter for the individual. Furthermore, suicide impacts others: a single suicide may affect around 135 people, a third of whom will experience a severe life disruption as a consequence. ³⁰ Again, then, suicide cannot be reduced to an act of individual autonomy: it has a profound impact on others. ³¹ In terms of suicide prevention, society can help restrict access to the means of suicide, such as guns. (The book’s valuable discussion of the causes of suicide would have been even better had it explored the possible influence in developed nations of family breakdown and the decline in religious belief).

Chapter 5 considers the ethics of suicide. Much of the chapter deals with autonomy and capacity and the extent to which autonomous choices merit respect. It forefronts Ronald Dworkin’s view that fashioning our lives according to our own vision of the good life is a fundamental aspect of humanity. ³² Autonomy enables us to develop and express our characters and beliefs; to be the authors of our life story. ³³ Herring maintains that we should therefore respect autonomous choices if they exhibit ‘rich, full’ autonomy, not if a choice is based on mistaken key facts or is irrational or a result of pressure by others. ³⁴ There are ‘very few’ cases of suicide where a person’s decision is richly autonomous as there are many factors that impair autonomy. In most cases, suicide will involve considerable harm and the person’s autonomy is too weak to justify it. He continues that often people are not sufficiently informed or sufficiently rational to apply the relevant information to their values, or they may lack the self-determination, authenticity, and self-government to enjoy autonomy in its rich sense. In many cases, it will be more autonomy-enhancing to prevent suicide, particularly where the suicidal wish clashes with the person’s deep-seated values or where it is based on mistaken facts. ³⁵ In sum, justifying suicide requires a balancing of the degree to which the decision is autonomous and the harmfulness of the decision. Suicide is justified if the decision is richly autonomous, and the harm limited.

Chapter 6 addresses human rights. It argues, focusing on the European Convention on Human Rights, that suicide breaches a person’s right to life under Article 2; that states are under a positive duty to prevent suicide and that a failure to discharge that duty infringes the right to life of the suicidal. ³⁶ It maintains that everyone enjoys this right to be protected, not merely those who are in the care of the state. ³⁷ It then analyses the state’s duty. There is its general duty to all citizens; its duty to particular groups; its operational duty to prevent individuals it knows are at risk of suicide; and its duty to investigate suicides with a view to avoiding future suicides. ³⁸ The chapter concludes that the state can certainly be expected to intervene when there is a serious, immediate risk of suicide, though suicide can be hard to predict and there may also be issues of resources and respect for autonomy (notwithstanding that few suicides will result from an exercise of rich autonomy) such that the state should not be held accountable. ³⁹ A state’s failure to implement an adequate policy of suicide prevention could also be seen as a failure to recognise the severity of mental illness and to value the lives of the mentally ill. ⁴⁰

After an introductory section summarising the criminal law, chapter 7 considers relevant provisions of the Mental Health Act 1983 and the Mental Capacity Act 2005. It notes a tension between the two Acts. Whereas the latter sets far too a low bar for capacity that many suicidal people could satisfy, thereby failing to protect their rights to autonomy and to life, the former can sometimes justifiably be used to detain them. The chapter also notes the possible use of the inherent jurisdiction to protect the suicidal who are capacitous but vulnerable. It ends by doubting whether in-patient treatment is all that effective in suicide prevention, which leads nicely to the topic of suicide prevention, the subject of the next chapter.

Chapter 8 begins by rejecting both the principled case against suicide prevention and the argument that prevention policies, at least those based in community engagement and relationship building, are ineffective. ⁴¹ It observes that suicide prevention involves a range of schemes and that it can be difficult to assess their effectiveness. ⁴² Nevertheless, restricting access to suicidal means, such as guns, is effective, and the control of material about suicide and self-harm on the Internet and in the media may also be helpful. ⁴³ Importantly, economic policies that tackle unemployment and debt, as well as social interventions to tackle loneliness, homelessness, and drug and alcohol abuse can combat suicide. ⁴⁴ Selective interventions, targeted at groups who are at particular risk of suicide, such as prisoners and young people, may also be effective. In US prisons, for example, the leading cause of death is suicide. ⁴⁵ The effectiveness of individual interventions can be particularly difficult to assess, not least as prediction is difficult. One study that Herring references concluded that 95% of patients assessed as ‘high risk’ did not end their lives but that half of those assessed as ‘low risk’ did. ⁴⁶

The chapter concludes that states should be doing far better. ⁴⁷ Prevention policy should focus not on the least successful measures – the detention and compulsory treatment of the suicidal – but on general measures, such as restricting access to suicidal means, improving access to mental health services, and promoting social inclusion. The chapter concludes that, sadly, much of the academic debate about end-of-life decisions ignores these issues and is devoted to ‘assisted dying’. ⁴⁸ That issue is taken up in chapter 9.

The chapter considers how the right to suicide prevention impacts the debate about euthanasia and assisting suicide. It seeks, first, to recentre the debates about end-of-life care away from the terminally ill and those with progressive conditions and towards the questions that are raised whenever a person wants to die and, second, to argue that an effective suicide prevention strategy strengthens rather than weakens the case for legalisation. ⁴⁹ It outlines the current ethical debate and lists four possible legal approaches (which do not, surprisingly, include maintaining the historic legal ban). It argues that the correct approach is for the law to stop people resorting to euthanasia or assisted suicide unless they can demonstrate sufficiently good reasons for accessing them, as where their decision is richly autonomous and they are in terrible pain or indignity. Such cases would be exceptional. ⁵⁰ The law should accommodate such rare cases via the defence of necessity, which would maintain the key message that euthanasia and assisted suicide are justified only exceptionally. ⁵¹ By not creating a ‘right to die’, it would also avoid putting pressure on vulnerable people to justify why they were not taking advantage of such a right. ⁵² Rather than spell out particular justifying conditions such as ‘terminal illness’, which would send a message to terminally ill patients that a hastened death would be suitable for them, it would be better to leave the criteria up to the appointed decision-makers, perhaps in the light of a number of relevant factors, similar to the approach taken by the Court of Protection when determining whether the withdrawal of treatment is in the ‘best interests’ of an incapacitous patient. ⁵³ There should be no fixed criteria and each case should be decided on its merits. ⁵⁴ While Herring recognises that this approach would not assuage concerns, he doubts whether fixed criteria would do so either. The most secure foundation would be the integrity of the decision-makers, and he recommends that they be judges, who should be given a broad discretion. ⁵⁵

The chapter notes the particular risks to women and people with disabilities and contains a very short section on the lessons from overseas, noting the disagreement about what those lessons are. It observes that the 4% of Dutch people who accessed euthanasia and assisted suicide in 2019 ⁵⁶ suggests that relatively low numbers of people would do so, but that in Oregon in 2020 a majority of people gave not wanting to be a burden on others as a main reason for seeking assistance. ⁵⁷ Research had, moreover, indicated that legalisation had led to an increase of over 6% in suicides, and in Oregon a 50% increase in the suicide rate of those aged 35–64. ⁵⁸

The chapter concludes that the debate has focused on the grand issues of autonomy and the sanctity of life at the expense of the reality of cases where people wish to die, such as old people in poverty and loneliness, abandoned people with disabilities, and abused and neglected folk in care homes.

Herring asks,

what have we done to our fellow humans that they feel this is the way? Is this the product of the way we have denied them the appropriate pain relief, the appropriate social provision, the appropriate affection? Instead, the proposal of many is to accept their wish and kill them, reinforcing the very messages that created those wishes in the first place. ⁵⁹

Nevertheless, he concludes, there is a need to find a response to those with a settled wish to die where attempts to provide them with meaning have failed.

Evaluation

Professor Herring is to be commended for producing such a thoughtful, well-researched, richly referenced, and clearly written book on an issue of profound legal, moral, and social importance. In accurately situating and analysing suicide in its real and tragic social context and in focusing on the right to be prevented from suicide, the book is far superior to the glut of publications that largely rehearse the familiar arguments for legalisation and ignore the right to be protected from suicide. ⁶⁰ It is a refreshing and welcome attempt to recentre contemporary discussion of suicide and assisting suicide by putting the sad reality of suicide, and its causes, centre-stage.

Whether it will succeed, however, remains to be seen. Contemporary ‘autonomania’, the simplistic and exaggerated emphasis on respect for autonomy at the expense of other moral principles, and the view that some people (especially those with disabilities, including dementia) are leading ‘undignified’ lives that are not (or are less) worth living, are well entrenched and will not be easily displaced. Moreover, there appear to be a number of unresolved tensions in the book which tend to blur its focus and blunt its impact (though it is not always clear which of the many richly diverse voices quoted in the book reflect that of the author.) The two main tensions relate to the ethical value of autonomy and human life and to the legalisation of assisting suicide and euthanasia.

First: autonomy and human life. Despite the book’s valuable insights into the relational nature of autonomy, our vulnerability and mutual interdependence, ⁶¹ and the fact that suicidal ideation often reflects the discriminatory views of other people, the book also seems to endorse Ronald Dworkin’s controversial ethical understanding of autonomy and of human life. On this understanding, we each write the story of our ‘biographical’ life in the light of our own subjective values. We give value to our lives (or we give no value to them). But did not chapter 4 tell us that the notion of autonomously writing the story of our lives is a fiction? Are we not members of a choir rather than writing solo? Moreover, even if we are writing solo, what if the life story some people write (the ‘grand statement about the meaning of their lives’ ⁶² ) is trashy or selfish or wicked? Is their story morally redeemed by the mere fact they wrote it freely? The suggestion in the book that we should prioritise respect for autonomy because there is no consensus on moral values ⁶³ is unpersuasive. There is no moral consensus that we should prioritise autonomy. And the fact that we may not agree on values does not mean they do not exist; laws sometimes rightly adopt a contested moral viewpoint. The law should continue to respect people’s intrinsic dignity, and to hold all lives to be worth living, even if some individuals think, however autonomously, that they would be better off dead.

Moreover, if we should help end the lives of those who autonomously think their lives no longer worthwhile, why would they be few? Many supporters of legalisation talk of wanting to ‘control’ their death just as they have ‘controlled’ their life, for the end of the novel of their life to reflect the way they have lived it, and the second most common reason for seeking a hastened death in Oregon (cited by over 85%) is ‘losing autonomy’. Why would such cases not be numerous in the United Kingdom? And what of the many people who would surely opt for a lethal prescription or injection because, whether as a result of age or disability, they are less able to participate in activities that make life enjoyable, the most common motivation in Oregon? ⁶⁴ In 2016, the Dutch government, responding to a campaign supported by many thousands of elderly people, proposed assistance in suicide for old folk who think their life ‘completed’. ⁶⁵ Why would, or should, UK law not follow suit? Far from being rare, ‘assisted dying’ could easily become quite common.

Furthermore, the book states that an autonomous choice for death should be weighed against the harm it will cause, and where the harm is serious the request must be strongly autonomous. ⁶⁶ But how is the weighing to be done, and why should autonomy trump the infliction of serious harm? And isn’t the harm likely to be least serious in cases where the person is old and requires costly support, and where no-one cares whether they live or die or may even welcome their hastened demise?

Second: legalisation. The book would have been better had it simply avoided this controversial and complex topic, to which it cannot do justice in the space of a single chapter, and whose treatment of it at best distracts from, and at worst undermines, its main thesis. The book’s support for legalisation on unspecified grounds, subject to the approval of a judge, invites at least two main criticisms.

The first is that it might be difficult even for a judge to determine that a request was truly autonomous. As Onora O’Neill has put it,

In a world of ideal, if mythic, rational beings, whose choosing was guaranteed to be wholly autonomous, assisted dying legislation might not be risky; but that is not our world. The philosopher Bernard Williams was, I think, right in suggesting that ‘we should not put too much weight on the fragile structure of the voluntary’. ⁶⁷

The difficulties would be magnified if, as would surely be the case, judges (and already overstretched NHS doctors) had to process many thousands of applications, when judicial (and medical) approval might amount to little more than a rubber stamp. Nor would the legal defence of necessity ensure low numbers: that was the route originally adopted in the Netherlands.

Second, legal assistance in suicide could invite and involve the same kind of discriminatory social judgements, so well documented by the book, that help explain why people presently decide to take their own lives. The book rightly notes that the fact that a request is autonomously made does not by itself justify compliance with it. ⁶⁸ Compliance would, then, involve the decision-makers, the doctors, and the judge, deciding whether the request was warranted, which would surely involve an assessment of whether the applicant’s life was ‘worth living’. If a judge were asked to approve an autonomous request from an old person whose previously active lifestyle had been curtailed by a disability like arthritis, why would the judge not readily approve the application on the ground that, far from inflicting a harm, death would confer a benefit? Not only that, but ever-increasing categories of people would surely be funnelled, and/or funnel themselves, into the suicide hopper, as has happened in the Netherlands and Belgium, and is happening in Canada, where there have been reports of a hastened death being suggested by doctors to people who have attempted suicide, and by officials to veterans; of people opting for death because of a lack of adequate resources, and of pressure on people with disabilities. ⁶⁹ It is unfortunate that the book does not explore the tragic reality of euthanasia and assisted suicide in anything like the same depth as it does the tragic reality of unassisted suicide. Moreover, the book rightly mentions the research indicating that suicides, both assisted and unassisted, have increased in jurisdictions that have relaxed their laws. The book urges that the law’s message to the suicidal should be ‘Please don’t’. ⁷⁰ Legalisation would signal ‘Please do’ or would, at the very least, convey a mixed message. It is not easy to see how legalisation, signalling social approval and promoting the normalisation of suicide, especially in undefined circumstances, would do other than aggravate the social problem of suicide by encouraging people to see a hastened death as a ready and approved solution to their problems, individual or social. The book even accepts that it may be right to regard suicide as a duty, albeit very rarely. ⁷¹ But once one admits the notion of a duty to die, why not extend it to, say, those with dementia who, in the view of thinkers like Mary Warnock, ⁷² have a duty to die because they are wasting the resources of their families and society? (The book does not explore the implications for the incapacitous of legalising euthanasia, but its emphasis on autonomy does not bode well for those unable to compose a positive ‘grand statement’ of the meaning of their lives.) The book could hardly be clearer about the social injustices that drive people to suicide, and it surely contemplates legalisation only once an effective suicide prevention strategy is in place, but that is unlikely to happen any time soon, if ever. And would legalisation itself not perpetuate injustice and frustrate such a strategy by endorsing the judgement, however autonomously made, that the lives of some members of society are not worth living?

The book’s treatment of ethics would have been all the better for adopting the philosophical approach articulated in Gorsuch’s work. His book The Future of Physician-Assisted Suicide and Euthanasia ⁷³ (easily the best book on ‘assisted dying’) understands autonomy as a valuable capacity for making good choices and not simply choices, including self-destructive choices, that accord with values one happens to adopt. It also defends the equal and intrinsic value of each human being and holds that everyone (including the dying, the disabled, and the disregarded) has a life that is worth living, even if they have lost sight of their own worth.

A third tension in the book concerns the definition of suicide. The book rightly regards suicide as intentional self-killing. However, it broadens that definition by suggesting that a person who acts foreseeing that death is inevitable is also a suicide, unless they are acting to avoid death or another terrible outcome. But foresight, even of certainty, is not intention. A heavy smoker who knows his habit will shorten his life, even by years, is surely not a suicide. The book also narrows the definition by excluding intentional self-killing by omission. But it is certainly possible intentionally to end one’s life by deliberate omission. What, for example, is the difference between, on the one hand, intentionally throwing oneself into the sea to drown and, on the other hand, deciding, after an afternoon’s sunbathing on the beach, to drown by waiting to be submerged by the incoming tide? The Dutch doctors who suggest self-dehydration to patients ineligible for euthanasia are surely encouraging suicide. ⁷⁴

Notwithstanding these three tensions, this impressive book remains an original, thought-provoking, and valuable contribution to the literature on suicide and on the right to be protected from it. It deserves to be very widely read, not least by those agitating for ‘assisted dying’.